Commonwealth v. Gerhardt (Lawyers Weekly No. 10-150-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11967 COMMONWEALTH vs. THOMAS J. GERHARDT. Worcester. January 6, 2017. – September 19, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1] Marijuana. Motor Vehicle, Operating under the influence. Evidence, Field sobriety test. Complaint received and sworn to in the Worcester Division of the District Court Department on April 24, 2013. A motion for a hearing to challenge the admissibility of certain evidence was heard by Andrew M. D’Angelo, J., and questions of law were reported by him to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Rebecca A. Jacobstein, Committee for Public Counsel Services, for the defendant. Michelle R. King, Assistant District Attorney, for the Commonwealth. Steven S. Epstein & Marvin Cable, for National Organization for the Reform of Marijuana Laws, amicus curiae, submitted a brief. Michael A. Delsignore & Julie Gaudreau, for National College for DUI Defense, amicus curiae, submitted a brief. GAZIANO, J. In this case we are asked to consider the admissibility of field sobriety tests (FSTs) where a police officer suspects that a driver has been operating under the influence of marijuana. Police typically administer three FSTs — the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test” — during a motor vehicle stop in order to assess motorists suspected of operating under the influence of alcohol or other drugs. These tests were developed specifically to measure alcohol consumption, and there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%. By contrast, in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol […]